Self-Regulatory Organizations; Notice of Filing of Proposed Rule Change by the Boston Stock Exchange Clearing Corporation Relating to Amendment of Its Articles of Organization and By-Laws in Connection With the Planned Acquisition by The NASDAQ OMX Group, Inc., 27583-27585 [E8-10595]
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Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Notices
‘‘Exchange’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’), pursuant to Section
19(b)(1) of the Securities Exchange Act
of 1934 (‘‘Act’’ or ‘‘Exchange Act’’) 1 and
Rule 19b–4 thereunder,2 a proposal to
retroactively apply its revenue sharing
program (‘‘RSP’’) for Designated Amex
Remote Traders (‘‘DARTs’’), ETF
specialists, and registered traders
(collectively, ‘‘ETF quoting
participants’’). The proposal was
published for comment in the Federal
Register on April 4, 2008.3 The
Commission received no comments on
the proposal. This order approves the
proposed rule change.
The RSP was first put in place by the
Exchange for ETF specialists and
registered traders, effective July 1, 2007,
and was to last through December 31,
2007 unless otherwise extended.4 The
Exchange inadvertently failed to file to
extend the RSP at the expiration of that
time period, but, upon realizing the
error, promptly filed to reinstate the
RSP for all ETF quoting participants,
effective March 18, 2008.5 The RSP is
now in effect through the end of
September 2008.
The Exchange now seeks to
retroactively apply the RSP for the time
period January 1, 2008 through March
17, 2008 (the ‘‘retroactive period’’) in
order to provide continuity in the RSP
for all ETF quoting participants on the
Exchange, who continued to quote
aggressively during the retroactive
period in the expectation of receiving
RSP payments. RSP payments for the
retroactive period will be made
pursuant to the same terms established
in the RSP Release.6
The Commission finds that the
proposed rule change is consistent with
the requirements of the Act and the
rules and regulations thereunder
applicable to a national securities
exchange.7 Specifically, the
Commission finds that the proposal is
consistent with Section 6(b)(4) of the
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 See Securities Exchange Act Release No. 57578
(March 28, 2008), 73 FR 18592.
4 See Securities Exchange Act Release No. 55893
(June 29, 2007), 72 FR 37059 (July 6, 2007) (SR–
Amex–2007–68) (‘‘RSP Release’’).
5 See Securities Exchange Act Release No. 57541
(March 20, 2008) (SR–Amex–2008–25), 73 FR 16400
(March 27, 2008) (reinstating RSP for all ETF
quoting participants); see also Securities Exchange
Act Release No. 57540 (March 20, 2008), 73 FR
16399 (March 27, 2008) (SR–Amex–2008–23)
(expanding RSP to DARTs).
6 See supra note 4.
7 In approving this proposed rule change, the
Commission has considered the proposed rule’s
impact on efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
rwilkins on PROD1PC63 with NOTICES
2 17
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Act,8 which requires the equitable
allocation of reasonable dues, fees, and
other charges among Exchange members
and other persons using Exchange
facilities. In approving this proposal, the
Commission notes the Exchange’s
statements that ETF quoting participants
have relied on the expectation of RSP
payments during the retroactive period,
and that the Exchange does not believe
it fair to withhold RSP payments from
ETF quoting participants for the
retroactive period solely because of the
Exchange’s inadvertent failure to extend
the RSP.
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,9 that the
proposed rule change (File No. SR–
Amex–2008–34) be, and it hereby is,
approved.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.10
Nancy M. Morris,
Secretary.
[FR Doc. E8–10562 Filed 5–12–08; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–57782; File No. SR–
BSECC–2008–01]
Self-Regulatory Organizations; Notice
of Filing of Proposed Rule Change by
the Boston Stock Exchange Clearing
Corporation Relating to Amendment of
Its Articles of Organization and ByLaws in Connection With the Planned
Acquisition by The NASDAQ OMX
Group, Inc.
May 6, 2008.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’) 1 and Rule 19b–4 thereunder,2
notice is hereby given that on April 24,
2008, the Boston Stock Exchange
Clearing Corporation (‘‘BSECC’’) filed
with the Securities and Exchange
Commission (‘‘Commission’’) the
proposed rule change as described in
Items I, II, and III below, which Items
have been prepared by the selfregulatory organization. The
Commission is publishing this notice to
solicit comments on the proposed rule
from interested persons.
8 15
U.S.C. 78f(b)(4).
U.S.C. 78s(b)(2).
10 17 CFR 200.30–3(a)(12).
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
9 15
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27583
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
BSECC proposes to amend its Articles
of Organization and its By-Laws to
reflect the planned acquisition of
BSECC by The NASDAQ OMX Group,
Inc. (‘‘NASDAQ OMX’’) and to update
the By-Laws in certain other respects.3
The text of the proposed rule change is
available from the principal office of
BSECC, at https://www.bostonstock.com/
BSECC/Pending/BSECC-2008-01.pdf,
and at the Commission’s Public
Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
self-regulatory organization included
statements concerning the purpose of,
and basis for, the proposed rule change
and discussed any comments it received
on the proposed rule change. The text
of these statements may be examined at
the places specified in Item IV below.
The self-regulatory organization has
prepared summaries, set forth in
Sections A, B, and C below, of the most
significant aspects of such statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
The Merger
On October 2, 2007, Boston Stock
Exchange, Inc. (‘‘BSE’’), announced that
it had entered into an agreement with
The Nasdaq Stock Market, Inc. (now
NASDAQ OMX) pursuant to which
NASDAQ OMX would acquire all of the
outstanding membership interests in
BSE and BSE would be merged with and
into Yellow Merger Corporation, a
Delaware corporation and wholly
owned subsidiary of NASDAQ OMX,
with BSE surviving the merger. As a
result of the merger, BSE would become
a Delaware stock corporation with 100%
of its outstanding stock owned by
NASDAQ OMX. BSECC is now and
following the merger will continue to be
a wholly owned subsidiary of BSE.
BSECC proposes to adopt (1) Articles of
Amendment to its Articles of
Organization, and (2) amendments to its
By-Laws for the purpose of reflecting its
acquisition by NASDAQ OMX and of
modernizing its governance documents.
3 BSECC is currently organized under the laws of
the Commonwealth of Massachusetts. The Articles
of Organization of a Massachusetts corporation are
comparable to the Certificate of Incorporation of a
Delaware corporation.
E:\FR\FM\13MYN1.SGM
13MYN1
27584
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Notices
rwilkins on PROD1PC63 with NOTICES
BSECC’s Articles of Organization
In order to amend its Articles of
Organization, BSECC would adopt
Articles of Amendment that would
amend its existing Articles of
Organization as follows:
1. Amend Article III to provide that
the total number of shares of each class
of stock that BSECC is authorized to
issue is 150 shares of common stock.
This amendment reflects a reduction in
the total authorized share capital of
BSECC from 1000 shares of common
stock to the 150 shares of Common
Stock currently held by BSE. Thus,
following the amendment, all of the
authorized shares of common stock of
BSECC would be outstanding and
would be owned by BSE;
2. Amend Article V to provide that
BSE may not transfer or assign any
shares of stock of BSECC unless such
transfer or assignment has been filed
with and approved by the Commission
under Section 19 of the Act;4 and
3. Adopt new Article VI to provide
that in accordance with modern practice
for Massachusetts corporations,
directors of BSECC are not personally
liable to it for breaches of fiduciary duty
except for breaches involving (i) a
breach of the duty of loyalty, (ii) acts or
omissions not in good faith or that
involve intentional misconduct or
knowing violation of law, (iii)
distributions of assets that would render
BSECC insolvent, or (iv) any transaction
from which the director derived an
improper personal benefit.
BSECC’s By-Laws
BSECC proposes several changes to its
By-Laws, which are primarily for the
purpose of updating the By-Laws in
accordance with modern corporate
practice for Massachusetts corporations.
The amendments proposed are:
1. Eliminate the offices of ‘‘clerk’’ and
‘‘vice-chairman’’ from BSECC and delete
references to those offices from the ByLaws;
2. Clarify the time periods allowed or
required for notice to stockholders of
meetings, the permissible duration of
stockholder proxies, and the setting of a
record date in accordance with modern
Massachusetts law and remove a
provision allowing close of the transfer
books of BSECC that is no longer
consistent with Massachusetts law; 5
3. Provide that stockholders, as well
as directors, may fill vacancies on the
Board, in accordance with
Massachusetts law;
4 15
U.S.C. 78s.
change would not limit the effectiveness of
the change to the Articles of Organization requiring
Commission approval of transfers of BSECC’s stock.
5 This
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16:14 May 12, 2008
Jkt 214001
4. Clarify that directors of BSECC who
also serve on BSE’s Board of Directors
must tender resignations from BSECC’s
Board if they cease to be directors of
BSE;
5. Clarify the requirements for action
by the Board of Directors and the
stockholders to be taken without a
meeting;
6. Establish that the officers of BSECC
are all appointed by and subject to
removal by its Board of Directors;
7. Adopt modern provisions
stipulating the conditions under which
BSECC may indemnify its officers and
directors and the scope of such
indemnification;
8. Stipulate that the By-Laws may be
amended only upon approval by the
Commission and in accordance with the
rules of BSECC;6 and
9. Clarify the meaning of several
provisions in accordance with modern
Massachusetts law and correct several
typographical errors.
BSECC believes that the proposed rule
change is consistent with the provisions
of Section 17A of the Act 7 in general
and with Section 17A(b)(3)(A) and (C) of
the Act 8 in particular in that it is
designed to ensure that BSECC is so
organized and has the capacity to be
able to facilitate the prompt and
accurate clearance and settlement of
securities transactions and to assure a
fair representation of BSECC’s members
in the selection of its directors and the
administration of its affairs.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
BSECC does not believe that the
proposed rule change will result in any
burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act, as amended.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
BSECC has neither solicited nor
received comments on the proposed
rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
Within thirty-five days of the date of
publication of this notice in the Federal
Register or within such longer period (i)
as the Commission may designate up to
ninety days of such date if it finds such
longer period to be appropriate and
6 Rule XII of BSECC, required notice to clearing
members of amendments to the By-Laws.
7 15 U.S.C. 78q–1.
8 15 U.S.C. 78q–1(b)(3)(A) and (C).
PO 00000
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Fmt 4703
Sfmt 4703
publishes its reasons for so finding or
(ii) as to which BSECC consents, the
Commission will:
(A) By order approve such proposed
rule change, or
(B) Institute proceedings to determine
whether the proposed rule change
should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form https://www.sec.gov/
rules.sro.shtml); or
• Send an e-mail to rulecomments@sec.gov. Please include File
Number SR–BSECC–2008–01 on the
subject line.
Paper Comments
• Send paper comments in triplicate
to Nancy M. Morris, Secretary,
Securities and Exchange Commission,
100 F Street, NE., Washington, DC
20549–1090.
All submissions should refer to File
Number SR–BSECC–2008–01. This file
number should be included on the
subject line if e-mail is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (https://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for inspection and copying in
the Commission’s Public Reference
Room, 100 F Street, NE., Washington,
DC 20549, on official business days
between the hours of 10 a.m. and 3 p.m.
Copies of such filing also will be
available for inspection and copying at
the principal office of BSECC. All
comments received will be posted
without change; the Commission does
not edit personal identifying
information from submissions. You
should submit only information that
you wish to make available publicly. All
submissions should refer to File
E:\FR\FM\13MYN1.SGM
13MYN1
Federal Register / Vol. 73, No. 93 / Tuesday, May 13, 2008 / Notices
Number SR–BSECC–2008–01 and
should be submitted on or before June
3, 2008.
For the Commission by the Division of
Trading and Markets pursuant to delegated
authority.9
Nancy M. Morris,
Secretary.
[FR Doc. E8–10595 Filed 5–12–08; 8:45 am]
BILLING CODE 8010–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–57793; File No. SR–CBOE–
2008–52]
Self-Regulatory Organizations;
Chicago Board Options Exchange,
Incorporated; Notice of Filing and
Immediate Effectiveness of Proposed
Rule Change Relating to the
Temporary Membership Status Access
Fee
May 7, 2008.
rwilkins on PROD1PC63 with NOTICES
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on April 30,
2008, the Chicago Board Options
Exchange, Incorporated (‘‘CBOE’’ or
‘‘Exchange’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’) the proposed rule
change as described in Items I, II, and
III below, which Items have been
prepared by the Exchange. CBOE has
designated this proposal as one
establishing or changing a due, fee, or
other charge imposed by the Exchange
under Section 19(b)(3)(A),3 and Rule
19b–4(f)(2) thereunder,4 which renders
the proposal effective upon filing with
the Commission. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested parties.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
CBOE proposes to adjust the monthly
access fee for persons granted temporary
CBOE membership status (‘‘Temporary
Members’’) pursuant to Interpretation
and Policy .02 under CBOE Rule 3.19
(‘‘Rule 3.19.02’’). The text of the
proposed rule change is available on the
Exchange’s Web site (https://
www.cboe.org/Legal/), at the Exchange’s
Office of the Secretary, and at the
Commission’s Public Reference Room.
9 17
CFR 200.30–3(a)(12).
U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 15 U.S.C. 78s(b)(3)(A).
4 17 CFR 240.19b–4(f)(2).
1 15
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II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission,
CBOE included statements concerning
the purpose of, and basis for, the
proposed rule change and discussed any
comments it received on the proposed
rule change. The text of these statements
may be examined at the places specified
in Item IV below. CBOE has prepared
summaries, set forth in Sections A, B,
and C below, of the most significant
aspects of such statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
The current access fee for Temporary
Members under Rule 3.19.02 5 is $8,260
per month and took effect on April 1,
2008. The Exchange proposes to revise
the access fee to be $10,079 per month
commencing on May 1, 2008.
The Exchange used the following
process to set the proposed access fee:
The Exchange polled each of the
clearing firms that assists in facilitating
at least 10% of the transferable CBOE
membership leases and obtained the
Clearing Firm Floating Monthly Rate 6
designated by each of these clearing
firms for the month of May 2008. The
Exchange then set the proposed access
fee at an amount equal to the highest of
these Clearing Firm Floating Monthly
Rates.
The Exchange used the same process
to set the proposed access fee that it
used to set the current access fee. The
only difference is that the Exchange
used Clearing Firm Floating Monthly
Rate information for the month of May
2008 to set the proposed access fee
(instead of Clearing Firm Floating
Monthly Rate information for the month
of April 2008 as was used to set the
current access fee) in order to take into
account changes in Clearing Firm
Floating Monthly Rates for the month of
May 2008.
The Exchange believes that the
process used to set the proposed access
fee and the proposed access fee itself are
appropriate for the same reasons set
forth in CBOE rule filing SR–CBOE–
5 See
Securities Exchange Act Release No. 56458
(September 18, 2007), 72 FR 54309 (September 24,
2007) (SR-CBOE–2007–107) for a description of the
Temporary Membership status under Rule 3.19.02.
6 The term ‘‘Clearing Firm Floating Monthly
Rate’’ refers to the floating monthly rate that a
clearing firm designates, in connection with
transferable membership leases that the clearing
firm assisted in facilitating, for leases that utilize
that floating monthly rate.
PO 00000
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27585
2008–12 in support of that process and
the original access fee for Temporary
Members under Rule 3.19.02.7
The proposed access fee will remain
in effect until such time either that the
Exchange submits a further rule filing
pursuant to Section 19(b)(3)(A)(ii) of the
Act 8 to modify the proposed access fee
or the Temporary Membership status
under Rule 3.19.02 is terminated.
Accordingly, the Exchange may further
adjust the proposed access fee in the
future if the Exchange determines that it
would be appropriate to do so taking
into consideration lease rates for
transferable CBOE memberships
prevailing at that time.
The procedural provisions of the
CBOE Fee Schedule related to the
assessment of the proposed access fee
are not proposed to be changed and will
remain the same as the current
procedural provisions regarding the
assessment of the current access fee.
However, the Exchange is proposing to
delete the current reference in the Fee
Schedule which notes that the first
month for which an access fee will be
assessed to Temporary Members under
Rule 3.19.02 is February 2008 because
the commencement of the assessment of
this access fee is now past.
2. Statutory Basis
The Exchange believes that the
proposed rule change is consistent with
Section 6(b) of the Act,9 in general, and
furthers the objectives of Section 6(b)(4)
of the Act,10 in particular, in that it is
designed to provide for the equitable
allocation of reasonable dues, fees, and
other charges among persons using its
facilities.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
CBOE does not believe that the
proposed rule change will impose any
burden on competition that is not
necessary or appropriate in furtherance
of the purposes of the Act.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received from
Members, Participants or Others
No written comments were solicited
or received with respect to the proposed
rule change.
7 See Securities Exchange Act Release No. 57293
(February 8, 2008), 73 FR 8729 (February 14, 2008)
(SR-CBOE–2008–12), which established the original
access fee for Temporary Members under Rule
3.19.02, for detail regarding the rationale in support
of the original access fee and the process used to
set that fee, which is also applicable to this
proposed rule change as well.
8 15 U.S.C. 78s(b)(3)(A)(ii).
9 15 U.S.C. 78f(b).
10 15 U.S.C. 78f(b)(4).
E:\FR\FM\13MYN1.SGM
13MYN1
]]>Agencies
[Federal Register Volume 73, Number 93 (Tuesday, May 13, 2008)]
[Notices]
[Pages 27583-27585]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10595]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-57782; File No. SR-BSECC-2008-01]
Self-Regulatory Organizations; Notice of Filing of Proposed Rule
Change by the Boston Stock Exchange Clearing Corporation Relating to
Amendment of Its Articles of Organization and By-Laws in Connection
With the Planned Acquisition by The NASDAQ OMX Group, Inc.
May 6, 2008.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act'') \1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on April 24, 2008, the Boston Stock Exchange Clearing Corporation
(``BSECC'') filed with the Securities and Exchange Commission
(``Commission'') the proposed rule change as described in Items I, II,
and III below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule from interested persons.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------
I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change
BSECC proposes to amend its Articles of Organization and its By-
Laws to reflect the planned acquisition of BSECC by The NASDAQ OMX
Group, Inc. (``NASDAQ OMX'') and to update the By-Laws in certain other
respects.\3\ The text of the proposed rule change is available from the
principal office of BSECC, at https://www.bostonstock.com/BSECC/Pending/
BSECC-2008-01.pdf, and at the Commission's Public Reference Room.
---------------------------------------------------------------------------
\3\ BSECC is currently organized under the laws of the
Commonwealth of Massachusetts. The Articles of Organization of a
Massachusetts corporation are comparable to the Certificate of
Incorporation of a Delaware corporation.
---------------------------------------------------------------------------
II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of these statements may be examined at
the places specified in Item IV below. The self-regulatory organization
has prepared summaries, set forth in Sections A, B, and C below, of the
most significant aspects of such statements.
A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change
The Merger
On October 2, 2007, Boston Stock Exchange, Inc. (``BSE''),
announced that it had entered into an agreement with The Nasdaq Stock
Market, Inc. (now NASDAQ OMX) pursuant to which NASDAQ OMX would
acquire all of the outstanding membership interests in BSE and BSE
would be merged with and into Yellow Merger Corporation, a Delaware
corporation and wholly owned subsidiary of NASDAQ OMX, with BSE
surviving the merger. As a result of the merger, BSE would become a
Delaware stock corporation with 100% of its outstanding stock owned by
NASDAQ OMX. BSECC is now and following the merger will continue to be a
wholly owned subsidiary of BSE. BSECC proposes to adopt (1) Articles of
Amendment to its Articles of Organization, and (2) amendments to its
By-Laws for the purpose of reflecting its acquisition by NASDAQ OMX and
of modernizing its governance documents.
[[Page 27584]]
BSECC's Articles of Organization
In order to amend its Articles of Organization, BSECC would adopt
Articles of Amendment that would amend its existing Articles of
Organization as follows:
1. Amend Article III to provide that the total number of shares of
each class of stock that BSECC is authorized to issue is 150 shares of
common stock. This amendment reflects a reduction in the total
authorized share capital of BSECC from 1000 shares of common stock to
the 150 shares of Common Stock currently held by BSE. Thus, following
the amendment, all of the authorized shares of common stock of BSECC
would be outstanding and would be owned by BSE;
2. Amend Article V to provide that BSE may not transfer or assign
any shares of stock of BSECC unless such transfer or assignment has
been filed with and approved by the Commission under Section 19 of the
Act;\4\ and
---------------------------------------------------------------------------
\4\ 15 U.S.C. 78s.
---------------------------------------------------------------------------
3. Adopt new Article VI to provide that in accordance with modern
practice for Massachusetts corporations, directors of BSECC are not
personally liable to it for breaches of fiduciary duty except for
breaches involving (i) a breach of the duty of loyalty, (ii) acts or
omissions not in good faith or that involve intentional misconduct or
knowing violation of law, (iii) distributions of assets that would
render BSECC insolvent, or (iv) any transaction from which the director
derived an improper personal benefit.
BSECC's By-Laws
BSECC proposes several changes to its By-Laws, which are primarily
for the purpose of updating the By-Laws in accordance with modern
corporate practice for Massachusetts corporations. The amendments
proposed are:
1. Eliminate the offices of ``clerk'' and ``vice-chairman'' from
BSECC and delete references to those offices from the By-Laws;
2. Clarify the time periods allowed or required for notice to
stockholders of meetings, the permissible duration of stockholder
proxies, and the setting of a record date in accordance with modern
Massachusetts law and remove a provision allowing close of the transfer
books of BSECC that is no longer consistent with Massachusetts law; \5\
---------------------------------------------------------------------------
\5\ This change would not limit the effectiveness of the change
to the Articles of Organization requiring Commission approval of
transfers of BSECC's stock.
---------------------------------------------------------------------------
3. Provide that stockholders, as well as directors, may fill
vacancies on the Board, in accordance with Massachusetts law;
4. Clarify that directors of BSECC who also serve on BSE's Board of
Directors must tender resignations from BSECC's Board if they cease to
be directors of BSE;
5. Clarify the requirements for action by the Board of Directors
and the stockholders to be taken without a meeting;
6. Establish that the officers of BSECC are all appointed by and
subject to removal by its Board of Directors;
7. Adopt modern provisions stipulating the conditions under which
BSECC may indemnify its officers and directors and the scope of such
indemnification;
8. Stipulate that the By-Laws may be amended only upon approval by
the Commission and in accordance with the rules of BSECC;\6\ and
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\6\ Rule XII of BSECC, required notice to clearing members of
amendments to the By-Laws.
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9. Clarify the meaning of several provisions in accordance with
modern Massachusetts law and correct several typographical errors.
BSECC believes that the proposed rule change is consistent with the
provisions of Section 17A of the Act \7\ in general and with Section
17A(b)(3)(A) and (C) of the Act \8\ in particular in that it is
designed to ensure that BSECC is so organized and has the capacity to
be able to facilitate the prompt and accurate clearance and settlement
of securities transactions and to assure a fair representation of
BSECC's members in the selection of its directors and the
administration of its affairs.
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\7\ 15 U.S.C. 78q-1.
\8\ 15 U.S.C. 78q-1(b)(3)(A) and (C).
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B. Self-Regulatory Organization's Statement on Burden on Competition
BSECC does not believe that the proposed rule change will result in
any burden on competition that is not necessary or appropriate in
furtherance of the purposes of the Act, as amended.
C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others
BSECC has neither solicited nor received comments on the proposed
rule change.
III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action
Within thirty-five days of the date of publication of this notice
in the Federal Register or within such longer period (i) as the
Commission may designate up to ninety days of such date if it finds
such longer period to be appropriate and publishes its reasons for so
finding or (ii) as to which BSECC consents, the Commission will:
(A) By order approve such proposed rule change, or
(B) Institute proceedings to determine whether the proposed rule
change should be disapproved.
IV. Solicitation of Comments
Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's Internet comment form https://
www.sec.gov/rules.sro.shtml); or
Send an e-mail to rule-comments@sec.gov. Please include
File Number SR-BSECC-2008-01 on the subject line.
Paper Comments
Send paper comments in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number SR-BSECC-2008-01. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (https://www.sec.gov/rules/
sro.shtml). Copies of the submission, all subsequent amendments, all
written statements with respect to the proposed rule change that are
filed with the Commission, and all written communications relating to
the proposed rule change between the Commission and any person, other
than those that may be withheld from the public in accordance with the
provisions of 5 U.S.C. 552, will be available for inspection and
copying in the Commission's Public Reference Room, 100 F Street, NE.,
Washington, DC 20549, on official business days between the hours of 10
a.m. and 3 p.m. Copies of such filing also will be available for
inspection and copying at the principal office of BSECC. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File
[[Page 27585]]
Number SR-BSECC-2008-01 and should be submitted on or before June 3,
2008.
For the Commission by the Division of Trading and Markets
pursuant to delegated authority.\9\
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\9\ 17 CFR 200.30-3(a)(12).
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Nancy M. Morris,
Secretary.
[FR Doc. E8-10595 Filed 5-12-08; 8:45 am]
BILLING CODE 8010-01-P
